Scottish judicial review procedures do not breach right to a fair and public hearing, court rules

The three petitioners, whose applications for judicial review were dismissed on the papers and whose requests for an oral hearing were also refused, argued that the new procedures breached articles 5, 6, 8 and 14 of the European Convention on Human Rights (ECHR).

But a judge in the Court of Session ruled that the statutory provisions “did not impair the petitioners’ right of access to the court”.

‘Right to a fair and public hearing’

Lady Carmichael heard that the first petitioner, “AP”, as guardian of her adult son, was seeking judicial review following an amendment to the Mental Health (Care and Treatment) (Scotland) Act 2003 which meant that she no longer had the status of a “named person”, which led to difficulties with her involvement in decision-making about the adult’s care and treatment outwith proceedings in the Mental Health Tribunal for Scotland.

The second petitioner, life prisoner Gordon Burns, raised proceedings over the Scottish Ministers refusal to “fast-track” his progression on the waiting list for psychological treatment to address his offending behaviour, alleging that the Scottish Ministers had unlawfully fettered their discretion to depart from a policy regarding the priority given to prisoners awaiting such treatment. 

The third petitioner, Joseph Millbank, a recalled extended sentence prisoner, was seeking to challenge a decision to move him from the open prison estate to closed conditions, and sought to amend his petition to include a challenge to the lawfulness of the strip-search and segregation.

The judge granted permission in AP for challenges based on the petitioner’s Convention rights under Articles 5, 6 and 8, and those Articles taken together with Article 14, although ultimately it was only the Article 6 right to a fair and public hearing which was considered, while in the cases of Burns and Millbank she granted permission only in relation to the challenges based on Article 6 and Article 6 with Article 14, which protects the enjoyment of ECHR rights and freedoms without discrimination.

It was argued that combination of factors in the scheme, being the potential for termination of the proceedings without an oral hearing, and the further consequence of the absence of an appeal, both “impaired the essence of the right of access to the court” and were “disproportionate interferences” with that right.

It was accepted that the regulation of access to courts in the interests of the proper administration of justice was a “legitimate aim” so far as each of these Articles was concerned, but it was submitted that the test from proportionality had not been met.

In relation to Article 14, it was submitted that the new provisions led to a “difference of treatment” between litigants seeking judicial review and other litigants, and that there was “no legitimate aim” for the difference in treatment.

On behalf of the Lord Advocate, it was argued that the provisions complained of did not impair the very essence of the petitioners’ right of access to the court.

‘Proportionate limitation’

The judge ruled that the new procedure, introduced by section 89 of the Courts Reform (Scotland) Act 2014, which amended the Court of Session Act 1988 by adding sections 27B-D, represented a “proportionate limitation” on the right of access to the court.

In a written opinion, Lady Carmichael said: “I consider that the provisions do not impair the very essence of the petitioners’ right of access to the court. Even where Article 6 applies in all its aspects, there are some circumstances in which no oral hearing is required. Article 6 does not require that an appeal be available. 

“Whether an oral hearing is required depends on the subject matter and whether it is necessary for the fair determination of the matter. In the context of this particular procedure, the decision as to whether an oral hearing is required is left to the Lord Ordinary. 

“As I have already observed, the Lord Ordinary will be able to take into account all of the circumstances relevant to the particular case in determining what is required, and will require to take into account the guidance given by appellate courts as to the correct approach to determining permission. 

“While there is no possibility of reclaiming where there has been no oral hearing, there is a two-stage procedure, with provision for review by a second judge, and the possibility of an oral hearing at either stage of the procedure.”

She added: “I am satisfied also that the provisions represent a proportionate limitation on the right of access to the court. I do not reach this conclusion unimpeded by a sense of unease about a scheme which could theoretically permit a challenge, even on a matter of very great public importance, to be brought to an end without a hearing in open court. 

“It is, however, proportionate because it recognises that there are some cases in which an oral hearing will be required for the fair and proper determination of whether permission should be granted, and others in which it will not. 

“There will be cases in which there will be nothing to be gained from an oral hearing. Such cases will include cases which are, on examination of the papers, totally without merit. In such cases there is no point in prolonging the proceedings or incurring expense by having an oral hearing.

“If an oral hearing were required in every case that would diminish the effectiveness of the measure insofar as it is directed at avoiding the expenditure of resources, which include the costs to parties and the court associated with the holding of a hearing, on unmeritorious claims. It would compromise unacceptably the achievement of the objective.” 

On the Article 14 complaint, the judge considered that if there was any difference of treatment for the purposes of that article, she was satisfied that it was “justified”. 

Lady Carmichael said: “I accept that there is a particular interest in the early and expeditious disposal of public law cases, which form the vast majority of judicial review applications. That includes an interest in avoiding protracting proceedings about the validity of public law decisions unnecessarily.

“A means of achieving that is by not imposing a requirement that an oral hearing be afforded in circumstances where a judge has determined that no such hearing is required in order to ascertain whether the tests for permission have been satisfied.”